Davidson v. Davidson

• Decision Date: 28 May 1992
• Docket Number: No. 91-0677,91-0677
• Citation: 485 N.W.2d 450,169 Wis.2d 546
• Parties: In re the Marriage of Dean E. DAVIDSON, Petitioner-Respondent, v. Jane A. Richards DAVIDSON, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

Page 450

485 N.W.2d 450

169 Wis.2d 546

In re the Marriage of Dean E. DAVIDSON, Petitioner-Respondent, v. Jane A. Richards DAVIDSON, Respondent-Appellant.

No. 91-0677.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 6, 1991.

Opinion Released May 28, 1992.

Opinion Filed May 28, 1992.

[169 Wis.2d 551] For the respondent-appellant the cause was submitted on the briefs of John H. Short of Vance, Wilcox, Short & Ristow, S.C. of Fort Atkinson.

For the petitioner-respondent the cause was submitted on the brief of William F. Hue of Krek & Hue, S.C. of Jefferson.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

SUNDBY, Judge.

This is a child custody dispute between parents who have not yet divorced. The father, Dean E. Davidson, is a Wisconsin resident. The mother, Jane A. Richards Davidson, presently resides in Iowa with the parties' children, Dustin and Sara. The father began this action in Jefferson County Circuit Court April 20, 1990, for legal separation from his wife and for physical custody of their children. His wife moved to dismiss on the grounds that the court lacked jurisdiction over her person, and lacked subject matter jurisdiction to make any order determining legal custody or physical placement of the party's minor children. Prior to the circuit court's decision, the father amended his pleadings to initiate divorce proceedings. The circuit court denied the wife's motion and ordered the husband's action to proceed. We reverse and remand the cause and direct that the circuit court dismiss the father's action insofar as he seeks a determination of legal custody and physical placement of the parties' children.

BACKGROUND

The mother and father were married July 14, 1979, in Council Bluffs, Iowa. Two children, Dustin and Sara, were born to the parties during their marriage. The children were minors when the father began this action. The family lived in Ames, Iowa, from June 1983 to May 1985; Blair, Nebraska, from May 1985 to October 1988; and Council Bluffs, Iowa, from October 1988 to December 1989. On December 10, 1989, the father moved to Jefferson, Wisconsin, to begin a new job with a local bank. When the parties' residential lease in Council Bluffs expired, the mother and the children joined the father on December 31, 1989.

On April 12, 1990, the mother and the children returned to Council Bluffs, ostensibly to visit the mother's family after her father's death. In a telephone conversation on April 17, 1990, the mother informed the father that she did not intend to return to Wisconsin but planned to file an action for divorce in Iowa when she met Iowa's The mother appeared specially in this action on April 30, 1990, and moved to dismiss on the grounds that the circuit court lacked personal jurisdiction over her and the children, and lacked subject matter jurisdiction to determine custody of the children. On March 18, 1991, the circuit court denied the mother's motion.

residency requirement. The father immediately began this action and served the mother in Iowa on April 23, 1990. The next day, the mother filed a petition in Pottawattamie County, Iowa district court for dissolution of the marriage and temporary custody of the children. On May 25, the Iowa court stayed proceedings before it pending the Jefferson County Circuit Court's determination of its jurisdiction. However, the Iowa court awarded the mother temporary custody of the children, subject to the father's visitation.

The circuit court found that the mother was a Wisconsin resident when she filed her action in Iowa, and that her petition amounted to a legal fraud upon the Iowa court. The court also found that the mother's move to Iowa violated the tenets and policies of the Uniform Child Custody Jurisdiction Act (UCCJA). The court concluded that therefore it had personal jurisdiction over the mother and the children. The court further concluded that it was not necessary to consider the UCCJA, ch. 822, Stats., ¹ and that it had subject matter jurisdiction over the father's action. Pending a decision by the family court commissioner, the court ordered that the status quo as to support and custody be maintained.

THE ISSUES

We identify the following issues:

(1) Did the circuit court obtain personal jurisdiction over the mother when she was timely served with the pleadings in this action? We conclude that it did when the father served the mother personally in accordance with sec. 822.05(1)(a), Stats.

(2) Did the circuit court err when it concluded that it did not need to consider ch. 822, Stats., to determine its jurisdiction in this action to decide legal custody and physical placement of the children? We conclude that sec. 767.015, Stats., required that the circuit court apply ch. 822 to determine its jurisdiction.

(3) Did the circuit court err when it concluded that Iowa courts have no jurisdiction to determine legal custody and physical placement of the parties' children? We conclude that the Iowa courts' jurisdiction to determine the legal custody and physical placement of the children is for the Iowa courts to determine.

(4) Does the mother lack standing to invoke the UCCJA because she unilaterally removed the children from Wisconsin to Iowa? We conclude that the mother's unilateral removal of the children from Wisconsin to Iowa is irrelevant to the circuit court's competency to proceed under ch. 822, Stats.

(5) Was the circuit court competent to determine legal custody and physical placement of the children under sec. 822.03(1)(d), Stats., because no other state had jurisdiction? We conclude that Iowa is the "home state" of the children, and therefore, an otherwise competent Iowa court may determine legal custody and physical placement of the children.

(6) Can the circuit court's assumption of jurisdiction to determine legal custody and physical placement of the children be sustained under sec. 822.03(1)(b), Stats., as a discretionary act in the best interest of the children? From our review of the record, we conclude that the circuit court would have abused its discretion had it assumed jurisdiction under sec. 822.03(1)(b), Stats.

The mother states that one of the issues is whether Wisconsin's exercise of jurisdiction over this child custody dispute is consistent with 28 U.S.C. § 1738A, the Parental Kidnapping Prevention Act (PKPA).

However, compliance with the PKPA will not become an issue in a Wisconsin court unless a child custody determination by a court of another state is attacked or sought to be modified in a Wisconsin court. In 28 U.S.C. § 1738A(a), it is provided:

The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another state.

The purpose of the PKPA is to make applicable to child custody determinations the full faith and credit clause of the U.S. Constitution, article IV, section 1. Michalik v. Michalik, 164 Wis.2d 544, 550, 476 N.W.2d 586, 589 (Ct.App.1991), petition for review granted --- Wis. ----, 482 N.W.2d 105 (1992). See Steven M. Schuetze, Note, Thompson v. Thompson: The Jurisdictional Dilemma of Child Custody Cases Under the Parental Kidnapping Prevention Act, 16 Pepp.L.Rev. 409 (1989). If the UCCJA conflicts with the PKPA, the latter prevails. In re A.E.H., 161 Wis.2d 277, 322, 468 N.W.2d 190, 208 (1991). We see no conflict.

If the Iowa district court or the court of another state makes an order or decree determining legal custody or physical placement of the children, a Wisconsin court asked to modify that order or decree will have to decide whether the order or decree was made consistently with the provisions of the PKPA. In this action, however, we determine whether the Jefferson County Circuit Court's decision was made consistently with ch. 822, Stats.

I. PERSONAL JURISDICTION

The mother contends that the circuit court's finding that she was a Wisconsin resident subject to the court's jurisdiction of her person under sec. 801.05(1)(b), Stats., when the father began this action is clearly erroneous and therefore the circuit court erred in concluding that it could make an order as to legal custody and physical placement which would bind the mother. We need not decide whether the circuit court's finding as to the mother's residence is clearly erroneous. In a "custody" ² proceeding under ch. 822, Stats., jurisdiction over a parent outside the state is acquired by notice given as prescribed in sec. 822.05, Stats. Such notice may be given by personal delivery outside the state in the manner prescribed for service of process within the state. Section 822.05(1)(a), Stats. The father personally served the mother in Iowa with notice of this action.

The requirements of due process under the fourteenth amendment are met in a child custody proceeding under the UCCJA when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard in the manner provided by the UCCJA. Leonard v. Leonard, 122 Cal.App.3d 443, 175 Cal.Rptr. 903, 912 (1981). See also Thompson v. Thompson, 129 Wis.2d 348, 352, 384 N.W.2d 713, 716 (Ct.App.1986) (circuit court acquired jurisdiction over father under sec. 822.05, Stats., because he was personally served in Minnesota with an amended summons and petition seeking custody of the child).

II. APPLICATION OF UCCJA

The circuit court concluded that it was not necessary that it consider ch. 822, Stats., to determine its competence to decide the legal custody and placement issues. The court considered that the place of trial was no longer critical, in view of the liberal use of telephone testimony and other adjuncts. Irrespective of the circuit court's conclusion that the UCCJA may be obsolete, the circuit court erred when it ignored sec. 767.015, Stats., which provides: "All proceedings relating...